Third Circuit Upholds Injunction of Threatened “Sexting” Prosecution

The case is Miller v. Mitchell, just handed down today, and it’s important but complicated. Please bear with me. [UPDATE: For more on this case, and how it could impose stringent constitutional limits on anger management classes, anti-drug/alcohol-abuse classes, or even traffic school offered as alternatives to prosecution, see this follow-up post.]

Here are the facts: A bunch of high school students were sending around “photographs of semi-nude and nude teenage girls,” apparently generally their classmates. The prosecutor “sent a letter to the parents of between 16 and 20 students — students on whose cell phones the pictures were stored and students appearing in the photographs — threatening to bring charges against those who did not participate in what has been referred to as an ‘education program.'”

The education program was divided into a Female Group and Male Group. The “Female Group” syllabus lists among its objectives that the participants “gain an understanding of what it means to be a girl in today’s society, both advantages and disadvantages.”

In the first session, students are assigned to write “a report explaining why you are here,” “[w]hat you did,” “[w]hy it was wrong,” “[d]id you create a victim? If so, who?,” and how their actions “affect[ed] the victim[,] [t]he school[, and] the community.” The first two sessions focus on sexual violence, and the third on sexual harassment. The fourth session is titled “Gender identity-Gender strengths,” and the fifth “Self Concept,” which includes a “Gender Advantages and Disadvantages” exercise.

What’s more, it appears that the particular girls whose parents were suing were probably not guilty of the crimes that the prosecutor threatened to prosecute them for (basically, participation in the distribution of child pornography). First,

Before the meeting, [District Attorney George Skumanick] had shown plaintiff MaryJo Miller and her ex-husband the two-year-old photograph of their daughter, in which Marissa Miller and Grace Kelly, 12 or 13-years-old at the time, are shown from the waist up wearing white, opaque bras. Marissa was speaking on the phone, while Grace was making a peace sign. Despite Ms. Miller’s protests that her daughter and friend were merely being “goof balls” and were not naked, Skumanick claimed the image constituted child pornography because they were posed “provocatively.” …

After the meeting, Skumanick showed Jane Doe the photograph of her daughter Nancy, taken about a year earlier. In the photograph, Nancy is wrapped in a white, opaque towel, just below her breasts, appearing as if she just had emerged from the shower.

I don’t think the prosecutor’s claim is right. First, the first two displays are not child pornography, since they don’t portray sexual conduct, lewd exhibition of the genitals, or “nudity … depicted for the purpose of sexual stimulation or gratification of any person who might view such depiction”; the matter is less clear as to the third, since it at least shows naked breasts — I can’t tell for sure without knowing more about the circumstances, and about Pennsylvania law on this. [UPDATE: I at first neglected to distinguish the three displays, but I’ve revised the preceding sentence to do so.] And, second, as the court stresses later, there was no evidence that the particular children on whose behalf the lawsuit was brought actually possessed the photos, which the court suggests is required for prosecution. (The court doesn’t discuss the possibility that the children might have been accomplices to the making of the photos, presumably because under 18 Pa. Consol. Stats. Ann. § 306(f) “a person is not an accomplice in an offense committed by another person if … he is a victim of that offense.”)

So the prosecutor (1) threatened to prosecute plaintiff’s daughter (2) even though it turns out he didn’t have probable cause for a prosecution (3) unless the daughter went through the “education program.” All three elements, it turns out, seem to be crucial to the decision.

Here’s what the court held:

(1) Requiring the education program violated the parents’ parental rights. “Jane Doe objects to the education program’s lessons in why the minors’ actions were wrong, what it means to be a girl in today’s society, and non-traditional societal and job roles. She particularly opposes these value lessons from a District Attorney who has ‘stated publicly that a teen[]age girl who voluntarily posed for a photo wearing a swimsuit violated Pennsylvania’s child pornography statute.’ The program’s teachings that the minors’ actions were morally ‘wrong’ and created a victim contradict the beliefs she wishes to instill in her daughter.” “[A]n individual District Attorney may not coerce parents into permitting him to impose on their children his ideas of morality and gender roles. An essential component of Jane Doe’s right to raise her daughter — the ‘responsibility to inculcate moral standards, religious beliefs, and elements of good citizenship’ — was interfered with by the District Attorney’s actions.”

The court distinguished education provided by a school, partly because the prosecutor “is not a public education official, but a public law enforcement official,” and partly because parents may choose to send a child to private school. The court did not discuss whether similar programs could be made requirement curriculum for all private schools.

(2) “Nancy Doe likely can show that the education program would violate her First Amendment freedom against compelled speech. She would be required to explain why her actions were wrong (presumably as a moral, not a legal, matter) in the context of a program that purports to teach, as Mitchell’s counsel described at oral argument, ‘[w]hat it means to be a girl; sexual self-respect, [and] sexual identity.’ We see a fundamental distinction between this requirement and the oft-used and constitutionally sound requirement in preindictment or pre-trial diversion programs that a potential defendant acknowledge responsibility for his or her criminal conduct or admit wrongdoing. ‘[W]hat it means to be a girl in today’s society,’ while an important sociological concern, in this case is a disconnect with the criminal and juvenile justice systems. This mismatch is all the more troubling given the age of the program’s participants. Minors often are more susceptible to external influences, and while this susceptibility may weigh in favor of certain educational or rehabilitative programs, it also cautions against allowing actors in the juvenile and criminal justice systems to venture outside the realm of their elected authority.”

(3) Threatening to prosecute the children for refusing to attend the education program interfered with the parents’ parental rights and the children’s rights to be free of compelled speech, because it threatened governmental retaliation for the exercise of constitutional rights.

(4) But this apparently is true only if the prosecution also lacked probable cause, given the Court’s ruling in Hartman v. Moore (2006). If the prosecutor had probable cause to prosecute, he could have done so if he was also motivated by the girls’ refusal to participate in the education program (and apparently could therefore have threatened to prosecute them if they didn’t participate in the program).

So what can we make of this? Items 1 and 2 seem to announce potentially quite broad principles: The government may not compel children to go through various educational programs — at least value-laden ones such as the one involved here — or threaten retaliation if they don’t go through the programs.

But item 4 dramatically limits the scope of that, at least when it applies to alternative-to-prosecution programs such as these. How much precedential effect will items 1 and 2 have when item 4 is inapplicable, for instance when (1) the state imposes some mandatory curricula on private schools as well as public ones, or (2) the state threatens the withdrawal of privileges (say, a driver’s license, or access to some government program) rather than a criminal prosecution? Not at all clear. I’d love to hear more thoughts on this, especially from people who are familiar with this general area of the law. (Plus I hope to blog more about this later myself as well.) But in any case, I wanted to pass this along, since I expect many of our readers will find the parental rights and free speech issues here to be quite interesting.